Friday, January 04, 2013

By Mike Dorf
On Monday from 10 - 11 am, I'll be a guest on On Point with Tom Ashbrook, heard on NPR stations around the country. So will Stanford Law Professor (and former federal judge) Michael McConnell. We'll be talking about the debt ceiling (of course). I'll expound the Buchanan/Dorf view that faced with the trilemma of only unconstitutional options, the President should choose the least unconstitutional option and that means overriding the debt ceiling. It's hard to predict what Professor McConnell's response will be.Here's what McConnell had to say about a month ago:

I have never seen a remotely persuasive argument that the president is entitled to borrow money that the Congress hasn't authorized. [The 14th Amendment] does not authorize the president to do anything. And it certainly doesn't authorize him to violate the clear constitutional provision that requires congressional authorization for borrowing.

Professor Buchanan explained what's wrong with this statement in a post last month. Buchanan and I agree with McConnell that Section 4 of the 14th Amendment doesn't authorize the president to do anything. The problem is that if Congress fails to raise the debt ceiling, then the President will have to violate some "clear constitutional provision" because borrowing, taxing and spending are all powers assigned to Congress. And as we lay out in detail in our Columbia Law Review Sidebar paper, the power to cut spending is also assigned to Congress. For the President to cut spending on his own is to assume a line-item-veto power that the Constitution denies him.Thus, relative to the Buchanan/Dorf view, McConnell's stated position is a non sequitur. McConnell is saying that the President isn't entitled to borrow money that Congress hasn't authorized him to borrow because doing so would be unconstitutional. But that's no kind of a response to our further argument that whatever the President might do--including doing nothing--would be unconstitutional. And as Professor Buchanan noted last month, McConnell heard the core of our argument over a year ago, so when McConnell says he hasn't "seen a remotely persuasive argument" he presumably means that he finds our argument unpersuasive, not that he is unaware of our argument. Yet McConnell's own reasoning is completely non-responsive to our view, so I'm at a loss to figure out which parts of our argument he finds unpersuasive.At least I'll have a chance to try to get to the bottom of the disagreement with McConnell when we're on air. I may simply end up frustrated with University of Chicago Law Professor Eric Posner, who agrees with us that the President should override the debt ceiling but for what he imagines to be quite different reasons. Writing in Slate, Posner says this:

Two law professors, Neil Buchanan and Michael Dorf, have argued that the president is actually constitutionally required to violate the debt ceiling rather than cut spending. To respect Congress’ will, he should follow its orders to spend rather than follow its orders not to borrow—the idea is that the spending power is somehow constitutionally fundamental to what Congress does, while the borrowing power is not. I say “somehow” because Buchanan and Dorf do not explain convincingly why that would be so.

Apparently, there is something about our argument that leads people to say it's not "persuasive" (McConnell) or not "convincing" (Posner), without feeling any obligation to confront the actual argument or to say why it's unconvincing.In any event, of course we don't convincingly explain how "the spending power is somehow constitutionally fundamental to what Congress does, while the borrowing power is not," because that's not our contention at all. Buchanan and I devote a few pages (of our 69-page article) to showing how past practice suggests that Congress in fact has treated the debt ceiling as pro forma relative to the budget, but we also make clear that our argument does not rest on the one or another power being more fundamental in any sense.Rather, the core of our argument goes like this: A President's multi-faceted decision about which spending programs to cut and by how much, or about what taxes to raise and by how much, would involve a great deal more policy judgment than would a decision to issue the precise amount of new debt needed to cover the gap between revenue in the Treasury and expenditures allocated by Congress. Therefore, we say, in order for the President to minimize his usurpation of Congress's policy-making authority when anything he does will usurp some Congressional power, the President should override the debt ceiling rather than cut spending or raise taxes.And lo and behold, after dismissing our argument as unconvincing, Posner then more or less adopts it. Here's what he says next:

If [the President] cuts spending, then he violates constitutional norms that give Congress the power to determine spending. If he raises revenues by borrowing or trying to tax people, then he violates constitutionals norms that give Congress the power to borrow or tax.

Yes, exactly right. The President faces a trilemma. So Posner finds our argument convincing after all; he just doesn't realize it.

There is a real, if subtle, difference, however. Buchanan and I think the President is obligated to minimize the constitutional damage he does, even when Congress puts him in an untenable situation. By contrast, Posner thinks that under such circumstances, the President gets to do whatever he wants. Or, as we characterized this view in our main Columbia Law Review article, if the President has only unconstitutional options, then for the likes of Posner, "all bets are off."Posner is a self-described follower of Carl Schmitt, believing that law cannot, and generally should not attempt to, constrain executive power. Thus, in his Slate piece, as in his earlier NY Times Op-Ed co-authored with Harvard Law Professor Adrian Vermeule (also the co-author of their book on executive power), Posner says that the better argument for presidential authority to override the debt ceiling is that the President runs the government. And if Congress is so foolish as to give the President contradictory orders, he "should wield the big stick . . . ." I'm very happy taking the view that law can, and should aim to, constrain executive power, as against Posner's (and Vermeule's) Schmittian President-uber-alles view.It would be better, I suppose, if our interlocutors would come to grips with what Professor Buchanan and I are actually saying rather than simply pronouncing our arguments unconvincing, but at least they're beginning to notice that we said something.

18 comments:

Please know, professor, that I, at least, find your argument persuasive. As an administrative law judge, I often find that the available options are not much better than a series of multiple choice messes. My job under those circumstances requires me to choose the least messy mess; hopefully the one most easily cleaned up. At least, that's my reading of what you and Professor Buchanan are saying.

You say that there is a trilemma on which the President is forced to do something unconstitutional no matter what happens. The President has three options: raising taxes, cutting spending, borrowing additional funds; if he raises taxes, he usurps a power granted to Congress; if he cuts spending, he usurps the power of Congress; and if he borrows additional funds (raises the debt ceiling), he usurps the power of Congress. Ergo, the President usurps the power of Congress. Given that this is so, he should minimize the degree of usurpation by raising the debt ceiling.

If I understand the argument correctly, it seems like a false trilemma. This is because there is a fourth option, namely the option of doing nothing at all (not raising taxes, not cutting spending, and not raising the debt ceiling). The result is that the United States defaults. I am not an economist, but my understanding is that debt default is not constitutionally impossible. Most governments try like the Dickens to avoid defaulting, because the consequences of default are usually far worse than the consequences of any other available alternative, but under the Constitution it's an option in logical space.

I haven't read the 69-pager, so my apologies if this objection is answered in your paper. What am I missing?

OK, now I'm guessing that a default for you counts as cutting spending (namely, not spending money to cover debt obligations). I was thinking of spending as spending on government programs (defense, health care, roads and bridges, that sort of thing), rather than as spending on debt servicing. I think I get it now.

What is your view on the platinum coin proposal? Using your framework doesn't that obligate the president to try this somewhat outlandish, yet seemingly legal route?

I would seem to violate the spirit of 31 USC 5112 (supposedly passed to authorize the minting of commemorative coins), but that seems irrelevant when faced with the prospect of an out and out violation of the Constitution?

Posner can of course defend himself, but I read his piece quite differently from how you do. As I read it, he fully comprehended your "trilemma" argument. The part he finds unconvincing (as do I) is your follow-on argument that unilaterally cutting spending is more unconstitutional than unilaterally borrowing. That is how I understood his comment that you argue "the spending power is somehow constitutionally fundamental to what Congress does, while the borrowing power is not." And I think it perfectly fair to say that the second part of your argument--after the trilemma--is to say that ignoring congressional spending directives is more "fundamental" (i.e. a graver constitutional breach) than ignoring congressional borrowing directives. You might not be very happy that people are not convinced by this second part of the argument, but I don't think it is fair to suggest they are mischaracterizing it or putting words into your mouth.

In response to matt30: I do plan to write about the Big Coin stuff soon, but the short version of one part of the argument is that Big Coins (even if they are not clearly in violation of the statute that supposedly authorizes them) really would violate the 14th Amendment, because that would not only REALLY bring into question the validity of the U.S. debt, but would threaten the integrity of the entire financial system. More to come.

In Response to TJ: I guess I don't see "somehow more fundamental" as (remotely) capturing what NHB and I actually say about the difference between unilaterally cutting spending and unilaterally borrowing--which is that the former involves a great deal more policy judgment, and is thus a substantially greater usurpation of the legislative role. That's actually not a complicated idea and can be summarized in almost as few words as EP used to (mis)characterize our argument. He then might have said something like "I find this unconvincing because presidents invariably make policy judgments" or some such. That would be respectful disagreement, rather than what I continue to read as a mischaracterization followed by a dismissal without argument.

If I understand correctly, what you wanted Posner to say is that "Buchanan & Dorf argue unilaterally cutting spending involves more policy-making than unilateral borrowing" rather than "Buchanan & Dorf argue unilaterally cutting spending is more fundamentally unconstitutional than unilateral borrowing."

But I think one objection (among others) is precisely the implicit move you make: to equate "more unconstitutional option" with "more policy-making." One can have many other conceptions of what constitutes the "more unconstitutional option." For example, if one takes the view that British history involves the King constantly trying to get more money than Parliament was willing to give, then one could equate the "more unconstitutional option" with "more spending." I'm not so much advocating that view (since you are the ones with the 69 page paper, I am happy to simply hold you to your burden of proof), but noting the higher level issue exists. I think "more fundamental" is a good way of expressing the higher-level concept of "more unconstitutional" that is a core idea in the paper, even if it leaves out your more specific conception of what you mean by "least unconstitutional". I will add that you will get a lot more people to buy the mid-level principle (including me) than to buy your specific conception of it.

Now, there is a separate objection that Posner simply doesn't explain why he is "unconvinced" by your analysis. But I don't think one can really explain why one is not convinced by a 69 page article in a single paragraph (your suggestion, that he state the president always makes policy decisions without further elaboration, is so obviously an incomplete response that no reader would be satisfied). But I think it is inaccurate to say that you don't talk about "fundamental-ness" in any sense of the word. It is that you talk about fundamentalness at the mid-level and then have a specific conception that the fundamental attribute in question is the degree of policy-making.

TJ: I don't see any point in further arguing over whether Posner mischaracterized our argument. We'll just have to agree to disagree about that.

I will say that on the merits, the argument to which you advert (but which I understand you merely to be flagging here rather than making) strikes me as beside the point. We can concede that unilateral spending by the President would be especially suspect--as we in fact concede in both the main article and the Sidebar paper, citing the English history in both--but nobody is proposing unilateral Presidential spending. The choices we explore are: 1) Taxing; 2) Cutting Spending; or 3) Borrowing. One could think that unilateral spending is more unconstitutional than any of those three, regardless of how one ranks those three options.

Agree to disagree. Last comment. The argument that I was adverting to wasn't that more unilateral spending was more unconstitutional. It was that unilateral action that results in more spending is more unconstitutional. You might think the latter principle is not supported by the reading of British history. But I didn't see you really address it in the article.

And I think it perfectly fair to say that the second part of your argument--after the trilemma--is to say that ignoring congressional spending directives is more "fundamental" (i.e. a graver constitutional breach) than ignoring congressional borrowing directives. You might not be very happy that people are not convinced by this second part of the argument, but I don't think it is fair to suggest they are mischaracterizing it or putting words into your mouth.